Court of Appeals for the Ninth Circuit

Seyfarth Synopsis: Ninth Circuit overturns district court’s dismissal of website accessibility lawsuit on due process and primary jurisdiction grounds, remands case to proceed with discovery.

On January 15, 2019, the Ninth Circuit Court of Appeals issued the fifth federal appeals court ruling on the issue of website accessibility, and there is no doubt that it is a victory for plaintiffs and their lawyers.  However, there are some pro-defense nuances that are worth pointing out.

By way of background, the district court had concluded that the ADA does apply to Domino’s website and mobile app, but dismissed the lawsuit before discovery because:  (1) Holding Domino’s in violation of the ADA when there are no legal technical standards for public accommodations websites would be violation of due process; and (2) under the primary jurisdiction doctrine, courts should hold off on deciding cases where enforcement agencies with special expertise should weigh in first.

The Ninth Circuit  agreed with the district court that the ADA applies to Domino’s website and app.  In so doing, the court said that the ADA “applies to the services of a place of public accommodation, not services in a place of public accommodation.”  The Ninth Circuit did not agree with the district court on the due process point, however, finding that Domino’s has been on notice since 1996 of DOJ’s position that its website and app must provide effective communication.  (We note, however, that none of the DOJ documents cited by the court actually mention mobile apps.)  The Ninth Circuit also said the district court erred in applying the primary jurisdiction doctrine, noting that since the DOJ is not going to issue any regulations about websites and mobile apps, applying the doctrine would just “needlessly delay” the resolution of the claim, and the application of the ADA to the facts of the case “are well within the court’s competence.”  The Ninth Circuit’s rejection of these due process and primary jurisdiction arguments, which are often mounted by defendants in website accessibility cases, is not entirely surprising as many district courts have also reached the same conclusion, and the district court’s decision in this case was an outlier.

The Ninth Circuit concluded by making clear that it was not expressing any opinion about whether Domino’s website or mobile app comply with the ADA.  The court instructed the district court to proceed with discovery and then decide whether Domino’s website and app comply with the ADA’s effective communication and full and equal enjoyment mandates.

From the defense perspective, there are several useful points in the decision.

First, the Ninth Circuit reaffirmed its position that, to be covered by the ADA, a website or mobile app must have a nexus to a physical place of public accommodation. The court stated that this nexus was “critical” to its analysis in the Domino’s case where the “alleged inaccessibility of Domino’s website and app impedes access to the goods and services of its physical pizza franchises – which are places of public accommodation.”  The Ninth Circuit said in a footnote that it was not deciding whether “the ADA covers the websites or apps of a physical place of public accommodation where the inaccessibility does not impede access to the goods and services of a physical location.”

Second, the Ninth Circuit left open the possibility that a 24/7 toll-free phone line could be a way to provide access in lieu of an accessible app or website.  The court did not have to consider the question of whether a telephone hotline could be an adequate alternative to an accessible website or mobile app because the district court’s holding was not based on the phone line.  However, the Ninth Circuit said in a footnote that “the mere presence of a phone number, without discovery on its effectiveness, is insufficient to grant summary judgment in favor of Domino’s.”  This statement suggests that, with discovery on the effectiveness of the phone line, summary judgment for Domino’s could be a possibility.

Third, in response to Domino’s complaint that the DOJ has failed to provide clear direction as to what public accommodations must do to comply with the ADA with respect to their websites, the Ninth Circuit reiterated that “the ADA and its implementing regulations are intended to give public accommodations maximum flexibility in meeting the statute’s requirements.”

Fourth, the Ninth Circuit said that “due process constrains the remedies that may be imposed.”  Thus, defendants may be able to make the due process argument later in a case if a violation of the ADA is found and the court must fashion injunctive relief.

In sum, while this decision adds to the growing body of website accessibility case law that favors plaintiffs, there are some useful nuggets.  That said, we predict the number of website accessibility lawsuits in California federal courts will increase dramatically in 2019.  While this case was on appeal, plaintiffs largely opted to file their website accessibility cases in California state court but this decision clears the way for more federal filings.

By Jon D. Meer

When defendants win in a Title III ADA accessibility case, they are entitled to seek their reasonable attorneys’ fees.  To recover, defendants have to show that the claims were “frivolous, unreasonable or without foundation.”  While most claims that are dismissed on summary judgment would seem to meet this standard, district courts often deny fees to prevailing defendants.

The Ninth Circuit has now endorsed a second chance to seek fees against plaintiffs who pursue appeals of their claims.  In the very recent decision in Martinez v. Columbia Sportswear USA Corp and Eddie Bauer LLC, Case No. 12-16331 (9th Cir. June 9, 2014), the Ninth Circuit awarded the defendants all of their fees on appeal, because “it was clear at the time that the district court entered final judgment that the claims had no basis in law or fact.”  Thus, even though the district court had denied the defendants’ request for fees at the time of final judgment, the Ninth Circuit held that a case that did not seem frivolous at the time of summary judgment may later be found frivolous if the plaintiff pursues an appeal.

Even better, the Ninth Circuit—which is often perceived as too friendly to the pursuit of ADA accessibility lawsuits—ordered that both the plaintiff and his counsel were both responsible for paying the defendants’ fees.

So, if fees are denied by the district court, defendants may get a second chance to seek fees on appeal.  At the appellate level, a case may seem more frivolous and a fee award from an appellate court is likely to be very difficult to overturn.  To take advantage of this strategy, defendants should consider the following:

  • Inform plaintiff’s counsel that defendants will seek fees on appeal, even if fees were denied by the district court
  • Consider waiving fees on appeal in exchange for plaintiff’s dismissal of the appeal—given that fees on appeal are a realistic possibility
  • Seek fees on appeal against both the plaintiff and the plaintiff’s counsel
  • Seek fees based on a reasonable rate with precise documentation of the hours worked and the billing rates of the lawyers on the appeal—don’t give the court an excuse to cut the amount of fees requested

To be sure, a realistic threat of paying attorneys’ fees can help to deter entrepreneurial lawsuits.  While a threat of fees might have little impact at the inception of litigation, defendants now have more support for a subsequent chance at fees on appeal.  Plaintiffs beware.

By Kristina M. Launey

The Ninth Circuit Court of Appeals recently held that a plaintiff must show intentional, willful, affirmative discriminatory action by a public accommodation to prevail on a claim for violation of California’s Unruh Act (one of the state’s ADA Title III-corollary statutes). There are actually two avenues through which a plaintiff can establish an Unruh Act violation: (1) showing that the ADA has been violated (for which intentional discrimination is not required), or (2) showing intentional discrimination (which requires a heightened burden and factual showings).  In this case, Greater Los Angeles Agency on Deafness et al. v. Cable News Network, Inc., the plaintiffs did not plead that there was a violation of the ADA. Thus, the court considered the Unruh Act claim only on the intentional discrimination ground.

As such, this decision, while informative, has limited applicability, and businesses should proceed with caution. For California businesses that are not public accommodations covered under the ADA, this decision is good news: as long as the business has not engaged in an intentional act, it is not liable under the Unruh Act. What would be such a business?  The only one that comes to mind is an online business that has no nexus to a physical location.  Contrary to some other circuits, the Ninth Circuit has held that a business’ website must have a nexus to a physical place of business in order to be a public accommodation under the ADA.  (See our previous report on Cullen v. Netflix, which held, relying on earlier Ninth Circuit precedent, that a video streaming website is not covered by the ADA because it is not an actual physical place; and on subsequent cases from within the Ninth Circuit holding websites not connected to “physical spaces” are not covered by the ADA.)  This may well be why the plaintiffs in this case did not assert an ADA claim and proceeded instead under the intentional discrimination prong of the Unruh Act.

This decision arose from CNN’s motion to strike a lawsuit in which the Greater Los Angeles Agency on Deafness, Inc. (“GLAAD”) alleged that CNN violated the Unruh Act and the Disabled Persons Act (“DPA”) by intentionally excluding deaf and hard of hearing visitors from accessing videos on CNN.com through its failure to provide captioning for the videos. GLAAD requested damages, declaratory relief, fees and costs, and a preliminary and permanent injunction “requiring [CNN] to take steps necessary to ensure that the benefits and advantages offered by CNN.com are fully and equally enjoyable to persons who are deaf or have hearing loss in California.”  Prior to filing suit, GLAAD had asked Time Warner to caption all of the videos on its news web sites, including CNN.com.  CNN responded that it would comply with whatever requirements the Federal Communications Commission (“FCC”) would impose under the new 21st Century Communications and Video Programming Accessibility Act (“CVAA”) rules.

The district court denied CNN’s motion to strike the complaint in its entirety.  CNN appealed to the Ninth Circuit.

The Ninth Circuit found that GLAAD had failed to establish a probability of success on its Unruh Act claims, which require a showing of intent.  The Unruh Act entitles disabled persons “to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” But, as the court noted, the Unruh Act “does not extend to practices and policies that apply equally to all persons” and requires a showing of intentional, willful, affirmative discriminatory action by a public accommodation. A plaintiff must show more than disparate impact of a facially neutral policy.

The court found “[n]otably absent from the record is any evidence supporting an inference that CNN intentionally discriminated against hearing-impaired individuals on account of their disability.  That hearing impaired individuals bore the brunt of CNN’s neutral policy is insufficient to support an Unruh Act claim.”  In other words, a neutral policy that has an adverse impact on people with disabilities is not enough to show the intentional discrimination required by the Unruh Act.  There must be a difference in treatment.  The court found no such difference in treatment and noted that CNN’s active participation in the FCC’s rulemaking process and its stated intention to comply with the FCC’s 2012 captioning rules was evidence of lack of  discriminatory intent.

The Ninth Circuit did not rule on the DPA claim.  Noting that the question of whether the DPA applies to websites is an important question of California law and of significant public concern, the court deferred decision on GLAAD’s DPA claim pending further guidance from the California Supreme Court, and certified the issue to the California Supreme Court.  CNN argued that a “place of public accommodation” under the DPA does not include websites. GLAAD contended that, considering the importance of the Internet in contemporary life, CNN.com is a “place” within the meaning of the act.  As the court noted, “[n]umerous recent cases have discussed the DPA’s applicability to virtual spaces like websites, but there is no conclusive California authority on point… Since the Internet is increasingly ubiquitous in daily life, and this question is likely to recur, we respectfully request that the California Supreme Court resolve the issue.”  This too is an important issue, which we will follow.

Edited by Minh N. Vu

By Andrew C. Crane

On January 28, 2014, in Martinez v. Columbia Sportswear USA Corp., the United States Court of Appeals for the Ninth Circuit affirmed summary judgment for our three retail defendants, holding for the first time that a 60-inch long dressing room bench constitutes an “equivalent facilitation” under the 1991 ADA Standards, which specify that benches must be 48” long.

The 1991 ADA Standards permits deviations from particular scoping requirements as long as the deviations allow for “substantially equivalent or greater access to” the facility–otherwise known as an “equivalent facilitation.”  Although a number of lower courts had held that a 60-inch bench constitutes an equivalent facilitation, prior to the Martinez decision, the Ninth Circuit had not taken a position.  The issue is now settled in California – where a disproportionate number of access lawsuits are filed.

In another boon for retailers, the Ninth Circuit also held in Martinez that “the clearing of moveable merchandise racks” that blocked store aisles addressed this barrier and rendered the claim moot.  While this is a great result, prevention is the best cure.  Retailers should have policies and procedure in place to keep their keep aisles clear of merchandise and merchandise racks to avoid a claim on this basis in the first place.

The case was handled through summary judgment and subsequent appeal by Jon D. Meer, Myra B. Villamor, and Andrew C. Crane of Seyfarth Shaw LLP.

Edited by Kristina M. Launey and Minh N. Vu